Unfair dismissal laws; private conduct by public servants

Who would have thought it? Public servants are more accountable for private conduct than other employees.
Incredible as it may seem in this day and age, there is a school of thought in employment law that the private conduct of public servants and quasi-public servants is more likely to be held to be relevant to their security of employment than employees in the private sector.
“Thus there will not usually be a proper basis to find that there is a valid reason for a dismissal for “out of hours” conduct which does not fall within the circumstances described in Rose v Telstra. Print Q9292 [1998] AIRC 1592 delivered 4 December 1998. Thus if an employer dismisses an employee for a breach of an employment policy which purports to regulate the employee’s private conduct, there will not usually be a valid reason for the dismissal unless the employee’s conduct falls with the Rose v Telstra circumstances.
However, the scope of employer control over private conduct may be greater in the case of public servants whose employment is regulated by statute. This was recognised by the Federal Court (Finn J) in McManus v Scott-Charlton 3 as follows:
“From 1862, Australian public service legislation has imposed strictures and limitations upon the employment and non-employment (or private) conduct and activities of public servants; the acquisition of personal interests conflicting with duties of office: cf PS Regulations, reg 8B; holding outside offices or employment: cf PS Act s91; making private disclosures of official information: cf PS Regulations, reg 35; and see also PS Regulations, reg 8A(i) and regs 65 and 70.
It seems clear that some number of these strictures and limitations were – and are – not designed merely to serve the purposes of the employment relationship as such. Rather, for reasons of governmental and public interest, their object includes securing values proper to be required of a public service in our system of government and, in particular, the maintenance of public confidence in the integrity of the public service and of public servants: for a contemporary treatment of this, see generally Electoral and Administrative Review Commission, Report on the Review of Codes of Conduct for Public Officials, (1992, Qld).
For this reason public service Acts and regulations have in some respects gone considerably beyond what would be countenanced by the implied contractual duty of an ordinary employee to serve his or her employer with good faith and fidelity – at least insofar as the regulation of an employee’s private activities are concerned: on this implied contractual duty, see eg Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81-82.
Perhaps the most contentious illustrations of this legislative regulation of private conduct have been (i) the changing supervision of the political activity of public servants (initially taking the form of a total ban: see Civil Service Regulations 1867 (Vic) reg 23;) but see now eg “Guidelines on Official Conduct of Commonwealth Public Servants” (1995) Chs 5 and 6; and for a comparative treatment see, Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986); and (ii) the still exceptionally broad and, perhaps today, possibly invalid prohibitions imposed on the private use made of information “of which an officer … has knowledge officially”: see PS Regulations, reg 35.
The particular points I wish to make about this enduring and legislatively backed “public interest” regulation of the private conduct of public servants are these. First, to the extent that private conduct is made the lawful subject of employment regulation, it can for that reason provide the subject of a binding employment direction – provided the direction given is itself reasonable.
Counsel for the applicant has submitted in contrast that the only binding directions which can be given a public servant are those related to – which have a nexus with – the performance of that person’s employment duties. In light of what I have said so far, this submission is untenable as a generalisation.”
Having regard to the above decision, I will proceed upon the basis that where Mr Starr has breached in a non-trivial way any relevant requirement of the PS Act, or any policy reasonably giving effect to a requirement of the PS Act, then such conduct may constitute a valid reason for dismissal.”
Starr v Department of Human Services (2016) FWC 1460 delivered 29 March 2016 per Hatcher VP